The Alphabet Soup: A Summary of Key Labor and Employment Law (and Leave Law) Acronyms

Transcription

1 The Alphabet Soup: A Summary of Key Labor and Employment Law (and Leave Law) Acronyms GENERAL LABOR AND EMPLOYMENT LAWS ADA, the Americans with Disabilities Act of 1990, 42 U.S.C et seq., is the federal law that prohibits discrimination against job applicants and employees with mental or physical disabilities. Title I of the ADA (42 U.S.C ; 29 CFR Part requires employers to make reasonable accommodations for a qualified individual with a disability. This federal law applies to every employer with 15 or more employees, and similar Oregon disability statutes (ORS 659A A apply to every Oregon employer with six or more employees. o ADAAA, the ADA Amendments Act of 2008 (42 U.S.C , et seq effective January 1, 2009, overrules several U.S. Supreme Court decisions and directs the courts to broadly interpret the ADA s disability definition, meaning that more employees are protected as individuals with disabilities and that employers must emphasize and document the interactive process when a physical or mental condition impacts an employee s job performance. Oregon passed legislation in 2009 (SB 874) that takes effect January 1, 2010 and dictates that Oregon disability statutes be broadly construed to the extent possible consistently with the ADAAA. ADEA, the federal Age Discrimination in Employment Act of 1967 (29 U.S.C CFR Part prohibits employers with 20 or more employees from discriminating against employees who are 40 or over. The Oregon law on age discrimination applies to all employers and prohibits age discrimination against individuals who are 18 or over. o OWBPA, the Older Workers Benefit Protection Act of 1990 (29 CFR , et seq. - amended the ADEA, making it illegal to discriminate against individuals 40 or over for employment benefit programs, and setting specific criteria for individual and group severance and release agreements in order to waive age discrimination claims. CAFA, the federal Class Action Fairness Act, 28 U.S.C. 1332(d), 1453, and , allows federal jurisdiction over certain collective action lawsuits (including wage and employment claims) and allows removal to federal court based on diversity jurisdiction. CFAA, the Computer Fraud and Abuse Act, 18 U.S.C. 1030, criminalizes certain knowing access to a computer without authorization (such as hacking by outsiders) with an intent to defraud and obtaining valuable intellectual property. Employers increasingly assert CFAA violations in civil actions in combating employee theft of intellectual property, especially when departing employees use their former employer s customer or business information obtained through unauthorized use of a company computer. COBRA, the Consolidated Omnibus Budget Reconciliation Act, is a federal law passed by Congress in 1986 that provides certain former employees, retirees, spouses and dependent children the right to temporary continuation of employer group health benefits that would otherwise be terminated. COBRA applies to employers with 20 or more employees, and the law provides an option to continue insurance benefits for up to 1

2 18 months. A similar Oregon law applies to employers with fewer than 20 employees and allows for benefits continuation for nine months (increased from six months in 2009). o The ARRA, the American Recovery and Reinvestment Act of 2009, also known as the federal stimulus plan, included provisions allowing certain individuals involuntarily terminated between September 1, 2008 and December 31, 2009 to receive a nine-month 65 percent premium discount on COBRA continuation coverage. On December 19, 2009, President Obama signed legislation extending the premium subsidy and discount to 15 months total for individuals involuntarily terminated through February 28, The President s budget for fiscal year 2011 proposes to further extend the COBRA subsidy to workers involuntarily terminated between March 1 and December 31, 2010, and the maximum discount period for those workers would be 12 months. EPA, the Equal Pay Act of 1963, amended the Fair Labor Standards Act (FLSA) and sets rules prohibiting wage discrimination based on gender. The EPA protects not only hourly non-exempt employees but also those administrative, professional and executive employees who are exempt under the FLSA. ERISA, the Employee Retirement Income Security Act of 1974, is a federal law designed to protect the rights of participants and beneficiaries of employee benefit and retirement plans. EPPA, the federal Employee Polygraph Protection Act, applies to all employers and generally prevents employers from using lie detector tests, either for pre-employment screening or during the course of employment, with certain exemptions. Employers generally may not require or request any employee or job applicant to take a lie detector test, or discharge, discipline, or discriminate against an employee or job applicant for refusing to take a test or for exercising other rights under the Act. Each employer who, relying on an exemption, requests or administers a polygraph test to an employee or applicant must maintain records setting forth the specific activity or incident which is the basis of the testing, notices setting forth the time and place of the testing and the employee's rights, and copies of reports and other documents provided by the examiner. An Oregon civil rights statute, ORS 659A.300, similarly makes it an unlawful employment practice for any employer to subject any employee or prospective employee to a polygraph examination, except where the individual consents to such examination during the course of criminal or civil judicial proceedings or during the course of a criminal investigation conducted by a law enforcement agency, a district attorney, or the Attorney General. FAA, the Federal Arbitration Act, 9 U.S.C. 1 et seq., was enacted February 12, The FAA allows for arbitration of many private disputes filed in both state and federal courts, including employment claims, where the parties have agreed to arbitrate. The U.S. Supreme Court has consistently interpreted the FAA as establishing a federal policy favoring arbitration agreements, even with respect to Title VII discrimination claims. In Oregon, ORS establishes the validity of arbitration agreements, but states in the employment context (ORS (5)) that the agreement is voidable and may not be enforced unless: (a) the employee received notice in a written employment offer at least 72 hours before the first day of employment that an arbitration agreement is required as a condition of employment, including a copy of the agreement containing an acknowledgment prescribed at ORS (6); or the agreement is entered into upon subsequent bona fide advancement of the employee. FCA, the False Claims Act, 31 U.S.C , provides whistleblower protection to individuals (including employees) who report companies (typically federal contractors) that defraud governmental programs. Individuals that file FCA claims have standing to collect a portion of recovered damages. FCRA, the federal Fair Credit Reporting Act, 15 U.S.C. 1681a et seq., applies to employers who conduct background checks on applicants and employees. The law, originally passed in 1971, requires employers to provide notice and disclosure when requesting consumer reports or consumer investigative reports. Congress amended FCRA with the Consumer Credit Reporting Reform Act of 1996 (CCRRA) and the Consumer Reporting Employment Clarification Act of 1988 (CRECA) to provide additional consumer protections. In 2003, Congress passed another FCRA amendment, FACTA, the Fair and Accurate Credit Transactions Act of 2003, also known as the FACT Act. FACTA allows consumers to obtain free credit reports once every 12 months and contains provisions to reduce identity theft. 2

3 FLSA, the Fair Labor Standards Act, is the federal wage and hour law that sets rules for minimum wage, overtime, child labor, and classification of exempt and non-exempt employees. The FLSA applies to any employer with an annual dollar volume of $500,000, and to any employee engaged in interstate commerce, a term that is very broadly construed. The Oregon wage laws apply to all Oregon employers. GINA, the Genetic Information Nondiscrimination Act of 200 (42 USC 2000ff et seq.; 29 CFR Part 1635), effective November 21, 2009, prohibits employers and health insurers from discriminating against employees on the basis of genetic predisposition to illness and disease, including a prohibition on gathering information about family history of illness. HIPAA, the Health Insurance Portability and Accountability Act of 1996, imposes rules on employers to protect confidentiality and security of employees personal health information and health care data. HIRE, the Hiring Incentives to Restore Employment Act, was signed into law by President Obama on March 18, The HIRE Act creates various tax incentives for businesses to hire new employees. For example, under HIRE, employers could obtain a Social Security payroll tax exemption if they hired employees between February 3, 2010 and January 1, 2011, if those workers had been unemployed for more than six months. Employers also will receive an income tax credit when they retain certain new-hires for 52 weeks. Employers use new IRS form W-11 to claim HIRE Act exemptions. IRCA, the Immigration Reform and Control Act of 1986, prohibits discrimination against individuals who are authorized to work in the United States on the basis of national origin or citizenship. LLFPA, the Lilly Ledbetter Fair Pay Act (H.R. 11 and S. 181), was the first piece of legislation signed by President Obama, on January 29, The Act overturns a U.S. Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), in which the court held that the 180-day statute of limitations period for filing an EEOC claim begins with the original discriminatory decision about an employee s compensation. The impact of the LLFPA is that a new harm is deemed to occur each time wages, benefits (including retirement benefits) or other forms of compensation are paid, resulting in whole or in part from a discriminatory decision or practice, such that each discriminatory paycheck restarts the statute of limitations clock. LLFPA amends Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act of 1990, and the Rehabilitation Act of 1973, to clarify that each discriminatory paycheck constitutes a separate compensation decision and practice under those laws. LLFPA takes effect as if enacted on May 28, 2007, and applies to all claims of pay discrimination pending on or after that date. MHPAEA, the Paul Wellstone and Pete Domeneci Mental Health Parity and Addiction Equity Act of 2008, applies to employers with more than 50 employees. Any group health plan whose costs increase 1 percent or more due to the application of MHPAEA s requirements may claim an exemption from MHPAEA. The Act provides for parity in the application of aggregate lifetime and annual dollar limits on mental health benefits with dollar limits on medical/surgical benefits. In general, group health plans offering mental health benefits cannot set annual or lifetime dollar limits on mental health benefits that are lower than any such dollar limits for medical/surgical benefits. A plan that does not impose an annual or lifetime dollar limit on medical/surgical benefits may not impose such a dollar limit on mental health benefits offered under the plan. MHPA s provisions, however, do not apply to benefits for substance abuse or chemical dependency. MHPAEA final regulations published in the Federal Register on Nov. 13, 2013 take effect Jan. 13, 2014 and, together with the mental health coverage mandates taking effect under the Patient Protection and Affordable Care Act (PPACA), vastly expand rights to mental health care. While the MHPAEA does not itself mandate that all health plans provide mental health and substance abuse benefits, it requires plans that do provide them to provide parity with medical and surgical benefits. But the PPACA does require the provision of mental health and substance-use disorder services as an essential health benefit for non-grandfathered insurance plans, beginning in NLRA, the National Labor Relations Act (also known as the Wagner Act ), was enacted in 1935 and protects employees not just at unionized workplaces who engage in various forms of concerted activity related to 3

4 workplace rights. The Act established the National Labor Relations Board (NLRB), which has authority to investigate charges of unfair labor practices, to oversee union elections, and to regulate collective bargaining rights. OEA, the Oregon Equality Act, effective in 2008, prohibits discrimination against persons in employment, housing and public accommodations based on sexual orientation. The law defines sexual orientation broadly to include actual or perceived heterosexuality, homosexuality, bisexuality or gender identity, regardless of whether the individual s gender identity, appearance, expression or behavior differs from that traditionally associated with the individual s sex at birth. OFFA, the Oregon Family Fairness Act (ORS ), took effect February 4, 2008 and allows for registration of and legal recognition of same-sex domestic partnerships in Oregon. Under the law, individuals of the same sex who are 18 or over and otherwise capable may register to become domestic partners in any county clerk s office in Oregon provided that at least one of them is an Oregon resident. OJAFA, the Oregon Job Applicant Fairness Act (2010 Senate Bill 1045; ORS 659A.320; OAR to -0085), makes it an unlawful employment practice for an employer to obtain or use an individual s credit history for any employment purpose. There are narrow exceptions for federally insured banks or credit unions; employers that are required by law to use credit history for employment purposes; employment of certain public safety officers; and where credit history is substantially job-related and the employer s reasons for the use of such information are disclosed to the employee or prospective employee in writing. However, substantially job-related is narrowly defined in the BOLI regulation to mean that the job has an essential function requiring access to financial information not customarily provided in a retail transaction that is not a loan or extension of credit i.e., information beyond the exchange of cash, checks and credit or debit card numbers. OSEA, the Oregon Safe Employment Act, codified at ORS to , ORS to , ORS to , and ORS ( sets safety standards for the workplace and is administered and enforce by the Oregon Occupational Safety and Health Division (OR-OSHA). ORS (5)(a) protects employees who oppose unsafe workplace conditions or make a safety complaint from discrimination, retaliation, or discharge and makes such actions by employers an unlawful employment practice. Employees may file claims for such discrimination with the Bureau of labor and Industries within 90 days, per ORS (6)(a), or file a civil action in state court within one year, per ORS (6)(c). OSHA, the Occupational Safety and Health Act of 1970, administered by the Occupational Safety and Health Administration, provides employees with certain rights and imposes obligations on employers designed to ensure safe and healthy workplaces. OSHA also prohibits employers from retaliating against employees who file complaints or assist in an OSHA investigation, and against employees who report work-related injuries and follow the orders or treatment plan of a treating physician, including being absent from work while recovering from an injury. OWRFA, the Workplace Religious Freedom Act (SB 786), ORS 659A.033, was passed by the 2009 Oregon legislature and is effective as of Jan. 1, It expands existing employer obligations under ORS 659A.030 to make reasonable accommodations for employees with sincerely held religious beliefs. In particular, the law requires employers to provide reasonable accommodation to religious observance or practices of an employee (including leave from work, accommodation of observance of religious holy days, and accommodation of religious garb requirements) unless providing accommodation would impose an undue hardship. PDA, the Pregnancy Discrimination Act, is a 1978 amendment to Title VII of the Civil Rights Act of 1964 that prohibits discrimination on the basis of pregnancy in all areas of employment, including hiring, firing, fringe benefits, job security, and other terms and conditions of employment. As with Title VII, the PDA applies to employers with 15 or more employees. (Oregon s sex discrimination law, ORS 659A.030, which covers discrimination based on pregnancy or maternity, applies to all Oregon employers.) 4

5 PPACA, the Patient Protection and Affordable Care Act of 2010 (aka ObamaCare ), is the national health care reform measure signed into law by President Obama on March 23, 2010 and modified by a reconciliation bill that the President signed on March 26, Though PPACA does not specifically require employers to offer health insurance to employees, effective January 1, 2014, companies with 50 or more employees that do not offer health care coverage will face a tax penalty of $2,000 for each full-time employee (excluding the first 30). The measure also will create health care exchanges effective October 1, 2013, and employees who earn less than four times the federal poverty level and who pay more than eight percent of their income for employer-sponsored coverage will have the option of purchasing health insurance through those exchanges. PRWORA, the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996, requires all Oregon employers to report information on newly-hired employees to the Oregon Department of Justice s Division of Child Support. The purpose of the law is to locate obligated parents to establish and enforce child support orders. Within 20 days of hire or rehire, the employer must report the data found on the W-4 form. A new hire is defined as any employee that is required to fill out a W-4 form. Any returning employee who has been absent for more than 45 days is also considered a new hire for purposes of employer reporting. SOX, the Sarbanes-Oxley Act of 2002, was also called the Public Company Accounting Reform and Investor Protection Act in the Senate and the Corporate and Auditing Accountability and Responsibility Act in the House. The law was enacted following various corporate and accounting scandals, and it created the Public Company Accounting Oversight Board (PCAOB). The Act contains numerous titles and compliance requirements, including rules on auditor independence and corporate responsibility related to financial reports. The Act also provides protections for whistleblower employees of publicly traded companies who provide evidence of fraud (18 U.S.C. Sec. 1514A), including a prohibition on terminating employees for providing information to a federal regulatory or law enforcement agency, a member or committee of Congress, or a person with supervisory authority over the employee. Title VII of the Civil Rights Act of 1964 applies to employers with 15 or more employees and prohibits discrimination based on race, color, sex, religion and national origin. A similar state law, ORS 659A.030, applies to all Oregon employers. USERRA, the Uniformed Services Employment and Reemployment Rights Act of 1994 (38 USC ; 20 CFR Part is a federal law that gives active and reserve members of the armed forces the right to return to the civilian jobs they held prior to military duty. USERRA allows for up to five years of protected military leave. An Oregon law also protects employees called to active duty in the Oregon National Guard. In 2009, the Oregon legislature passed a bill (HB 3256) that became effective January 1, 2010 and incorporates the federal USERRA protections into state law by reference, prohibiting discrimination or retaliation in employment against individuals who serve in uniformed services. ORS 659A.082(4). WARN, the federal Worker Adjustment and Retraining Notification Act, applies to employers with 100 or more employees and requires 60 days advance notice to affected employees and local government representatives in the event of a plant closing or mass layoff. The plant closing rule applies when one or more facilities or operating units within an employment site will be shut down and when the shutdown will result in an employment loss for 50 or more employees during any 30-day period, or fewer than 50 employees if the closing also involves layoff of enough other workers to make the total number of layoffs 50 or more. A "mass layoff" occurs when 500 or more workers at a single site are laid off during a 30-day period, or when workers are laid off if this constitutes 33% or more of the employer's total active workforce. Oregon has a "baby" WARN Act, found at ORS 285A.510, et seq., which merely incorporates the federal WARN Act definitions by reference and identifies the appropriate state contact agency for notifications when notice is required. 5

6 LEAVE LAWS FOR OREGON EMPLOYERS (See also references above to ADA, USERRA and WRFA) OFLA and FMLA, the Oregon Family Leave Act (ORS 659A A and the federal Family and Medical Leave Act of 1993 (29 USC 2601 et seq.; 29 CFR Part 825), are the state and federal laws that generally allow eligible employees to take 12 weeks of protected leave per year in various qualifying situations, including when the employee or a family member has a serious health condition and when the employee has a newborn child. The FMLA applies to employers with 50 or more employees in the U.S., and OFLA applies to any employer with 25 or more employees in Oregon. OFLA has broader coverage in some respects, allowing up to 12 weeks of leave for sick child incidents related to the non-serious health condition of a child requiring home care, and allowing more than 12 weeks of leave in a 12-month leave year in certain situations involving the use of pregnancy disability leave and parental leave. Effective Jan. 1, 2014, OFLA allows two weeks of the leave entitlement to be used for bereavement leave to deal with the death of an eligible employee s family member, to be taken within 60 days of receiving notice of the death. FMLA s family member definition covers the parent, spouse or child of the employee. On August 9, 2013, the U.S. Department of Labor indicated, following the U.S. Supreme Court decision in U.S. v. Windsor, that FMLA will be available to same-sex spouses where such marriages are recognized in the state where the employee resides. OFLA s family member definition is much broader than FMLA s, covering not only the parent, spouse or child of an employee, but also the employee s parents-in-law, grandparents, grandchildren, and registered same-sex domestic partner and parents and children of such partner. In 2008, Congress expanded FMLA to include up to 26 weeks of protected leave to care for a family member or next of kin injured or ill as a result of active duty military service, as well as up to 12 weeks of protected leave for various qualifying exigencies related to the military call-up of a family member. In 2009, OFLA was expanded by the OMFLA, the Oregon Military Family Leave Act (HB 2744, ORS 659A A OAR which took effect June 25, OMFLA allows eligible employees who have worked an average of 20 hours per week up to 14 work days of unpaid leave per military deployment (notification of an impending call or order to active duty) of a spouse or registered same-sex domestic partner in the Armed Forces, National Guard or military reserve forces, or for the spouse s leave from deployment during a period of military conflict. OMFLA leave runs concurrently with (rather than in addition to) the 12-week OFLA entitlement. When an employee using OMFLA leave is also FMLA-eligible, the leave will run concurrently with FMLA s qualifying exigency leave entitlement. Oregon Crime Victims Leave (ORS 659A A allows an eligible employee (one who has worked an average of 25 hours or more per week in the 180 days prior to a leave) of an employer with six or more employees protected unpaid time off work if he or she is a crime victim who has personally suffered financial, social, psychological or physical harm as a result of a felony or who is a member of the immediate family of the crime victim. Immediate family member includes the spouse, domestic partner, parent, grandparent, sibling, child or stepchild of a crime victim. There is no maximum length of crime victim leave, but the employer may limit the amount of leave an employee may take if the employee s leave creates an undue hardship on the business. OVCCLA, the Oregon Victims of Certain Crimes Leave Act (ORS 659A A OAR OAR ), applies to employers with six or more employees and requires leave for victims of domestic violence, harassment, sexual assault or stalking and prohibits discrimination against employees using leave under OVCCLA. Leave under OVCCLA in some cases runs concurrently with OFLA leave. The

7 Oregon legislature passed a bill (SB 928) expanding OVCCLA to require covered employers (those with six or more employees in Oregon) to provide reasonable safety accommodation for qualifying employees, effective January 1, The 2011 Oregon legislature passed a bill (HB 3482) expanding OVCCLA to apply to victims of criminal harassment under ORS The 2013 Oregon legislature passed a bill (HB 2903) removing the requirement that an employee must have worked an average of 25 hours per week for a covered employer for at least 180 days immediately preceding the use of leave in order to be eligible, and also requiring a workplace poster related to OVCCLA leave rights, effective Jan. 1, Bone Marrow Donation Leave, ORS 659A.312, allows an employee who works an average of 20 or more hours per week to take time off to donate bone marrow to the extent he or she has already accrued paid leave. The length of leave may not exceed 40 work hours or the amount of the employee s accrued paid leave, whichever is less, unless the employer agrees to allow additional leave. The Portland Protected Sick Time Ordinance (Portland City Code, Chapter 9 was passed on March 13, 2013 by the Portland City Council. The City issued final administrative regulations, SL 1 to SL 13 ( November 1, The Ordinance takes effect on Jan. 1, 2014 and will be enforced by the Oregon Bureau of Labor and Industries. The Ordinance requires private sector employers with at least six employees to provide paid sick and safe leave (PSL) to any employee who works at least 240 hours in a calendar year within Portland city limits. The Ordinance also applies to employees of the city of Portland, but not to other federal, state, county or city employees. Employers with fewer than six employees must also provide sick and safe leave to eligible employees, but it need not be paid leave. The Ordinance protects employees from discipline or retaliation for the use of PSL. Employers will be required to post a workplace notice advising employees of their rights under the Ordinance, and will be required to provide employees with a quarterly written notice of the amount of accrued and unused PSL available for use by each employee. Employers must retain records for at least two years regarding PSL accruals and use by each employee. The Ordinance applies to any eligible employee, regardless of whether classified as full-time, part-time, seasonal or temporary by the employer. Eligible employees must earn one hour of PSL for every 30 hours worked, and employers must allow accrual of up to 40 hours of PSL per calendar year and carryover of up to 40 hours of unused PSL into the following calendar year. Employers are not, however, obligated to cash out PSL to departing employees. Employers with existing paid time off (PTO) or paid sick leave policies that meet all the requirements of the Ordinance (including accrual rates and permissible uses of leave) are not required to provide further paid leave. Covered employers must allow eligible employees to use PSL for the employee s own care while ill, for obtaining preventive care including routine medical and dental visits, for the care of an ill family member (including the employee s spouse, child, parents, parents-in-law, grandparents, grandchildren and registered same-sex domestic partner), for reasons related to domestic violence, harassment, sexual assault or stalking, and for certain closures of the workplace or a child s school due to a public health emergency. Other jurisdictions with paid sick leave laws include Seattle; San Francisco; Milwaukee; the State of Connecticut; New York City; Washington, D.C., and Jersey City, New Jersey. 7

8 LEAVE LAWS FOR WASHINGTON EMPLOYERS (See also references to ADA, FMLA and USERRA) WFLA, the Washington Family Leave Act, found at RCW Chapter ( was amended in 2006 and follows the federal FMLA, but in its pre-2008 form, prior to enactment of military-related statutory leave expansions and the issuance of new U.S. Department of Labor FMLA regulations that took effect in WFLA applies to employers of 50 or more employees and has the same leave eligibility thresholds as FMLA. Up to 12 weeks of WFLA leave may be used in a 12-month leave year for the eligible employee s serious health condition, serious health condition of a family member, or parental leave to bond with and care for a new child. WFCA, the Washington Family Care Act, RCW ( and WAC ( was enacted in WFCA applies to all Washington employers and allows workers with any available paid leave to take protected time off to care for a sick child with a routine illness, a spouse, parent, parent-in-law or grandparent with a serious or emergency health condition, or an adult child with a disability. WFCA leave has no upper cap, but is only available to an employee to the extent that he or she has remaining paid leave provided under the employer s policy. PDL, Pregnancy Disability Leave, applies to Washington employers with eight or more employees who are covered under the Washington Law Against Discrimination (WLAD). PDL rules are found in the Washington Human Rights Commission regulations at WAC ( An eligible Washington employee is entitled to protected PDL for the entire duration of an incapacity related to pregnancy or childbirth, as specified by her health care provider. PDL runs separately from the 12-week leave entitlement under WFLA, but runs concurrently with FMLA, which covers pregnancy disability leave. WMFLA, the Washington Military Family Leave Act, RCW Chapter ( allows eligible employees (those who work an average of 20 or more hours per week) to take 15 days of unpaid leave per military deployment of a spouse who has been notified of an impending call or order to active duty as a member of the armed forces of the U.S., National Guard or Reserves, or who has been deployed when the President or Congress has declared war or when military reserves have been called to active duty. The 15 days of WMFLA leave runs separately from WFLA, but concurrently with FMLA qualifying exigency leave when the employee is FMLA-eligible. Domestic Violence Leave, RCW Chapter ( and WAC Chapter ( is authorized in Washington for any employee who is a victim of domestic violence, sexual assault or stalking for the purpose of addressing legal, financial and health care needs. Employees who are family members of such victims may also take leave to care for or assist the family member. Covered family members include a child, spouse, parent, parent-in-law, grandparent or person with whom the employee has a dating relationship. There is no minimum hours worked requirement for eligibility. Reasonable leave (no specific time limit is provided under the law) is permitted to seek law enforcement or legal assistance or to prepare for or participate in any legal proceedings; to seek health care treatment for physical or mental injuries or to attend to such health care treatment for a family member; to obtain or assist a family member in obtaining services from a domestic violence shelter, a rape crisis center, or other social services; to obtain or assist a family member in obtaining mental health counseling; or to participate in safety planning, to temporarily or permanently relocate, or to take actions to increase the safety of the employee or family member. 8

9 Seattle s Paid Sick Leave Ordinance, Title 14, Seattle Municipal Code, Chapter ( ),Seattle Office for Civil Rights Rules, Chapter 70 ( was passed by the Seattle City Council on September 12, 2011 and took effect September 1, Under the ordinance, Seattle employees of covered businesses with five or more employees must accrue paid sick/safe time that can be used for the employee s or a family member s illness or health needs, to cope with the consequences of domestic abuse, sexual assault or stalking, or in cases where a place of business or a child s school or place of care is closed for public health emergency. Employees of Tier 1 Employers (5 to 49 FTE) must accrue 1 hour for every 50 hours worked, up to cap of 40 hours (5 days) of leave. Employees of Tier 2 Employers (50 to 249 FTE) must accrue 1 hour for every 35 hours worked, up to a cap of 56 hours (7 days) of leave. Employees of Tier 3 Employers (250+ FTE) must accrue 1 hour for every 30 worked, up to a cap of 72 hours (9 days) of leave. 9

10 LEAVE LAWS FOR CALIFORNIA EMPLOYERS (See also references to ADA, FMLA and USERRA) CFRA, the California Family Rights Act (Cal. Gov. Code , and Cal. Code Regs., tit. 2, , generally follows the federal FMLA but does not cover pregnancy disability leave, which is covered by California s separate Pregnancy Disability Leave (PDL) law. CFRA, like FMLA, applies to employers of 50 or more employees and employees who have been employed for at least 12 months and worked at least 1250 hours in the 12 months immediately preceding their leave. CFRA allows up to 12 weeks off in a 12-month leave year for an employee s own serious health condition, the condition of a child, spouse, parent or same-sex domestic partner with a serious health condition, or parental leave to care for and bond with a new child. CFRA leave is unpaid but California s State Disability Insurance (SDI) may provide pay to temporarily disabled employees, as well as six weeks of Paid Family Leave (PFL) upon the birth, adoption, or foster placement of a child. PDL, the California Pregnancy Disability Leave law (Cal. Gov. Code 12945, and Cal. Code Regs., tit. 2, , part of the Fair Employment and Housing Act (FEHA), applies to California employers with five or more employees. Any female employee of a covered employer is eligible for PDL, regardless of time worked, and may take up to four months of PDL per pregnancy for any incapacity related to pregnancy, childbirth, and related medical conditions. California s PDL runs separately from CFRA but concurrently with federal FMLA leave, which covers pregnancy disability leave. Employers may not force the use of paid vacation during PDL, but may require the use of paid sick leave. California s State Disability Insurance (SDI) can cover pay for part of the PDL period. SDI, California s State Disability Insurance ( is a partial wagereplacement insurance plan for California workers, funded through employee payroll deductions. SDI has two programs that cover employees: Disability Insurance, and Paid Family Leave (PFL) ( The Disability Insurance program provides short-term benefits to eligible workers who suffer a loss of wages when they are unable to work due to a non work-related illness or injury, or due to pregnancy or childbirth. The Paid Family Leave program was established for workers who suffer a loss of wages when they need to take time off from work to care for a seriously ill child, spouse, parent, registered domestic partner, or to bond with a new minor child. PFL, the Paid Family Leave Insurance Program enacted in 2002 and administered by the California Employment Development Department ( provides up to six weeks of paid leave benefits in a 12-month period, after a seven day waiting period. Employees covered by California s State Disability Insurance (SDI) are also covered by PFL, regardless of the number of employees in the business. The PFL insurance program, also known as the Family Temporary Disability Insurance Program (FTDIP), covers individuals who take time off work to care for a seriously ill child, spouse, parent, or registered domestic partner, or to bond with a new minor child (within the first year after birth, adoption or foster care placement). An employer may require that an employee use up to two weeks of accrued vacation before paid family leave begins. The employee must file a paid family leave claim form to collect benefits. PFL insurance benefits are determined based on the earnings shown in an employee s base period (approximately 5 to 18 months before the start of a PFL claim) and not based on the employee s work hours or work period. PFL can run concurrently with FMLA and CFRA but does not otherwise impact those laws. PFL does not provide job protection, but rather provides partial wage replacement when an employee cannot work due to the need to care for a family member or bond with a new child. 10

11 California Kin Care Statute, Cal. Labor Code 233, provides that [a]ny employer who provides sick leave for employees shall permit an employee to use in any calendar year the employee s accrued and available sick leave entitlement, in an amount not less than the sick leave that would be accrued during six months at the employee s then current rate of entitlement, to attend to an illness of a child, parent, spouse, or domestic partner of the employee. Crime Victim Leave, Cal. Labor Code 230(b) ( is authorized in California for any employee who has been the victim of a crime, or whose family member (spouse, child, sibling, parent, or registered domestic partner) has been the victim of a crime. Crime victim leave may be taken for the purpose of attending criminal proceedings. Domestic Violence Leave, Cal. Labor Code 230(c), ( is authorized in California for any employee (of an employer of any size) related to domestic violence, sexual assault or stalking. Leave is allowed to provide for the employee s own safety or their child s health, safety or welfare, including time off for medical treatment, psychological counseling or other domestic or sexual assault victims services, safety planning including relocation, or legal proceedings. Effective Jan. 1, 2014, the effective date of Senate Bill 400 ( ), the law s anti-retaliation provisions extend to employees who are known or suspected victims of domestic violence, sexual assault and stalking, and an employer is required to engage in an interactive process to provide reasonable safety accommodations to victims of domestic violence, sexual assault, and stalking. Effective in 2014, Labor Code also prohibits employers of 25 or more employees from retaliating against such employees who take leave for specified purposes, including seeking medical attention, obtaining crisis services, obtaining psychological counseling, or participating in safety planning related to domestic violence, sexual assault or stalking. Jury Duty Leave, Cal. Labor Code 230(a), is authorized in California for any employee taking time off to serve as required by law on an inquest jury or trial jury, if the employee, prior to taking the time off, gives reasonable notice to the employer that he or she is required to serve. Employers may not discharge or in any manner discriminate against an employee using such leave. Bone Marrow / Organ Donation Leave, Cal. Labor Code 1510, is authorized in California for employees who provide written notice of a medical necessity for the donation of bone marrow or of an organ. The law, as amended by 2011 Senate Bill 272 ( requires employers of 15 or more employees to grant up to five days paid leave for bone marrow donation and up to 30 days paid leave for organ donation in any one-year period, measured in business days rather than calendar days. The employer may require the employee to use up to five days of PTO for bone marrow leave and up to two weeks of PTO for organ donation leave. The 12- month period for measuring the entitlement is a rolling-forward year based on the date the employee s leave begins. The organ and bone marrow donation leave entitlement is separate from, and in addition to, employee leave entitlements under CFRA. San Francisco Paid Sick Leave Ordinance, Chapter 12W of the San Francisco Administrative Code ( effective February 5, 2007, requires all employers to provide paid sick leave to each employee (including temporary and parttime employees) who performs work in San Francisco. The ordinance requires San Francisco employees to accrue one hour of paid sick leave for every 30 hours worked. There is a cap of 40 hours of accrued paid sick leave for employers of fewer than 10 employees and a cap of 72 hours of accrued sick leave for larger employers. Under the ordinance, employees are entitled to paid sick leave for their own medical care and also to aid or care for a family member or designated person (to be selected annually by an employee who has no spouse or registered domestic partner) when they are ill, injured, or receiving medical care, treatment, or diagnosis. 11

12 San Francisco Family Friendly Workplace Ordinance ( and applies to employers with 20 or more employees and takes effect on January 1, The ordinance is a right to request law, allowing eligible employees who are caregivers, and who have been with the employer for six months or more and work 8 or more hours per day, the right to ask for flexible or predictable work arrangements and schedules such as part-time schedules, telecommuting or job sharing. Covered employers must meet with the employee within 21 days of a request and issue a decision on the request within 21 days following the meeting. The employer may deny the request for certain bona fide reasons such as loss or productivity and costs/impacts of additional hiring, training or job transfers. Leave for Emergency Rescue Personnel and Reserve Peace Officers (Cal. Labor Code 230.4) is authorized effective Jan. 1, 2014 based on amendments to the statute enacted in the 2013 legislative session (Assembly Bill 11). The law mandates that employers of 50 or more employees provide temporary leaves of absence of up to 14 days per calendar year for volunteer firefighters, reserve peace officers, and emergency rescue personnel for the purpose of engaging in fire, law enforcement or emergency rescue training. (The prior legislation applied only to volunteer firefighters and did not cover emergency rescue training.) Employers are prohibited from discriminating or retaliating against employees who take time off for these purposes. 12